Solomon on Tort Theory

The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.

And from the paper:

Within this general framework, we can see it is plausible that the
injured person is entitled to have the "reactive attitude of resentment," to use
Peter Strawson's terms.116 The negligent actor has unilaterally changed the
terms of social relations by elevating her liberty interest too far above the
injured‟s security interest.

When you believe that you have been harmed by someone's
carelessness, resentment is a "natural" or "rational" attitude to adopt towards
that person. By "natural," I mean simply that it is a common reaction to being
wronged in many cultures and societies, and it is consistent with the backwardlooking
characteristic of the reactive emotions.117 There is also evidence from
evolutionary biology that it is an adaptive trait, present in primates and that has
been handed down.

And by "rational" I mean that the attitude is understandable or "makes
sense" because there is a norm that has been violated, we accept that there is
such a norm, and that the violation of said norm is a moral wrong such that
the violator is to be blamed. 118 If he is to be blamed, then it would be rational for the object of the wrong to resent him.119 I do not mean by "rational" that
the feeling is clearly the appropriate one to adopt (assuming such a choice
possible) after a cost-benefit analysis. Rather, we might say that resentment
towards a wrongdoer, after being harmed by that person or entity's
wrongdoing, is rational in that it is an "apt feeling," as Allan Gibbard puts it.120

Another excerpt from a bit further on:

With Darwall's framework in mind, let's consider the role that acting
against wrongdoers plays in a moral community. In acting against one who
has wronged us, we say: “You can‟t do that to me.” In doing so, we affirm our
moral worth, self-respect and dignity. The philosopher Jean Hampton
describes the idea of a “moral injury”153 as “an affront to the victim‟s value or
dignity.”154 The idea is that acting against the wrongdoer negates the affront.
Where the wrong has “diminished”155 the value of the victim, the retributive
response that Hampton discusses "is intended to indicate the value of the
victim" and restores her to the status of equal.156

One who respects herself does not let another walk all over her. Being
too hasty to forgive, or too reluctant to confront, allows the moral diminishment to remain intact. We instinctively warm to the idea of
forgiveness as an appropriate and morally superior way of responding to one
who has wronged us. But a serious strain in philosophical thought questions
the moral superiority of forgiveness.157 The philosopher Jeffrie Murphy, for
example, suggests three reasons -- self-respect, self-defense, and respect for the
moral order -- why we ought not be so quick to forgive, and why some
measure of resentment is good.158 We might also (and some have) frame these
first two reasons as being about maintaining personal honor or individual
dignity.

And:

So the state creates a system whereby victims are empowered, if they
so choose, to bring claims that they have been wronged against another. And
though the procedural mechanisms are not unique to tort law, note how well
they fit the idea of someone calling to account one who has wronged her. It
starts with filing a "complaint," and delivering the complaint to the alleged
wrongdoer. The wrongdoer then provides an "answer," explaining why or
what she has done does not constitute a wrong to the complainant. The victim
herself is in charge of demonstrating that a wrong has occurred, and that the wrong is one for which the injurer ought to be liable to the victim.202